This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2278

Cir. Ct. No.2010CV2273

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

Park Bank,

Plaintiff-Respondent,

v.

Edward R. Pope,

Defendant-Appellant,

DexM Aerospace, LLC,

Defendant.

APPEAL
from a judgment of the circuit court for Waukesha County:Patrick
L. Snyder, Judge.Affirmed.

Before Neubauer, P.J., Reilly and Gundrum, JJ.

¶1PER CURIAM. Edward R. Pope appeals from a summary
judgment arising out of an action to collect on a personal guaranty he executed
on loans made by Park Bank to DexM Aerospace, LLC.Pope contends that he presented evidence
establishing genuine issues of material fact about the enforcement of his
personal guaranty and the appropriate amount of his liability.We reject Pope’s claim and affirm the
judgment of the circuit court.

¶2In 2006, DexM entered into a number of loan arrangements with
Park Bank.Those loans were secured by
DexM’s assets.Pope, the sole owner of
DexM, also executed a personal guaranty.

¶3By 2008, DexM was having trouble meeting its obligations to
Park Bank.Rather than immediately
commence collection proceedings, DexM and Park Bank entered into a forbearance
agreement, which was extended, via amendment, on seven subsequent
occasions.Pope signed these documents
as a principal of DexM and personally as a guarantor of DexM’s obligations.

¶4In 2010, after DexM’s financial condition had deteriorated
significantly, Park Bank requested and was granted the appointment of a
receiver over DexM pursuant to Wis. Stat.
ch. 128 (2009-10).[1]The receiver held an auction and liquidated
DexM’s assets.

¶5Park Bank also sued Pope on his personal guaranty.Pope answered, asserting various affirmative
defenses and counterclaims.Park Bank
then moved for summary judgment, arguing that the express terms of the personal
guaranty and the subsequent forbearance agreement precluded Pope’s defenses and
counterclaims as a matter of law.Park
Bank also argued that Pope lacked legal standing to assert his defenses and
counterclaims.

¶6Following a hearing on the matter, the circuit court granted
Park Bank’s motion for summary judgment.In doing so, the court dismissed some of Pope’s defenses based on the
record, others based on standing, and granted judgment to Park Bank for the
full amount of its deficiency claim.This appeal follows.

¶7We review a grant of
summary judgment using the same methodology as the circuit court. Estate
of Sheppard ex rel. McMorrow v. Schleis, 2010 WI 32, ¶15, 324 Wis. 2d 41, 782 N.W.2d 85. We need not recount this well-known
methodology in full. Summary judgment is
proper if there are no genuine issues of material fact and one party is
entitled to judgment as a matter of law. See
id.;see also Wis.
Stat. § 802.08(2).

¶8On
appeal, Pope contends that he presented evidence establishing genuine
issues of material fact about the enforcement of his personal guaranty and the
appropriate amount of his liability.He
accuses Park Bank of misconduct in its handling of DexM’s assets.Additionally, he maintains that he has
standing to assert his claims based on damages to DexM because he is doing so
in a defensive posture.

¶9We need not address the issue of Pope’s standing to resolve
this case.That is because we view
Pope’s personal guaranty and the forbearance agreement he signed as dispositive.

¶10As noted, Pope executed a personal guaranty of DexM’s loans
with Park Bank.In it, Pope agreed to
“guarantee payment of the Obligations defined below when due.”The “Obligations defined below” included “all
loans, … notes, and all other debts, obligations and liabilities of every kind
and description, whether of the same or a different nature, arising out of
credit previously granted, credit contemporaneously granted or credit granted
in the future by Lender to any Debtor.”The guaranty identified Park Bank as the Lender and DexM as the
Debtor.

¶11Pope also signed the forbearance agreement (and subsequent
amendments) both as a principal of DexM and personally as a guarantor of DexM’s
obligations.That agreement reaffirmed
Pope’s guaranty “without offsets, deductions, counterclaims or defenses of any
kind and character.”It also contained a
release provision whereby Pope and DexM released, acquitted and discharged Park
Bank for any liability arising from an act or omission on the part of the
bank.

¶12Reviewing these documents, we agree with the circuit court that
Park Bank was entitled to judgment as a matter of law.To begin, we view Pope’s personal guaranty as
a guaranty of payment.[2]By executing it, Pope made an absolute
promise of payment to Park Bank for DexM’s loan obligations that was
enforceable on its own right, pursuant to the express terms of the guaranty.Moreover, we conclude that Pope waived any defense
he had for the liability of his promise by agreeing to the language in the
forbearance agreement.For these
reasons, we affirm the judgment of the circuit court.[3]

By the Court.—Judgment affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2009-10 version.

[2] Wisconsin
law distinguishes between guaranties of payment and guaranties of
collection.With a guaranty of payment,
a creditor is “not under any legal obligation to first enforce collection from
the maker or any other guarantor, or to first resort to securities given by the
principal debtor....Under (a) guaranty
of payment, and not merely of collection, plaintiffwas
entitled to immediate recovery from the sureties, and his right to immediate
recovery from them could not be postponed for their benefit until after efforts
to recovery by foreclosure or otherwise were exhausted.”Bank of Sun Prairie v. Opstein, 86
Wis. 2d 669, 677-78, 273 N.W.2d 279 (1979) (quotation omitted).A guaranty of payment is as an absolute, not
collateral, promise.Id.
at 678.

[3] Park
Bank concludes its brief by asking that it be awarded its actual costs and
disbursements, including actual attorney fees, incurred on appeal.We decline to award any attorney fees to Park
Bank, as we follow the American Rule and there is no statute or enforceable
contract providing for such an award.SeeReid v. Benz, 2001 WI 106, ¶2, 245
Wis. 2d 658, 629 N.W.2d 262 (“[U]nder the … American Rule, parties to
litigation are generally responsible for their own attorney fees incurred with
respect to the litigation.”).However,
Park Bank is free to seek reimbursement of other costs pursuant to Wis. Stat. Rule 809.25.